ADA Trends: ADA Compliance In Difficult Times

The Americans With Disabilities Act (ADA) is almost 19 years old. Nowadays, ADA compliance is standard practice for most facilities managers (fms). Implementing the design, construction, maintenance, and operational requirements is ongoing and routine. Yet, with widespread budget restrictions and layoffs these days, there are new challenges to these practices.

There are five major ADA initiatives that make sense for fms during this economic downturn. First, they should be prepared to use the 2004 version of the ADA Architectural Barriers Act Accessibility Guidelines (ADA/ABAAG). Next, they should be well on the way to implementing accessible design and construction protocols. Ensuring maintenance of accessible elements is another important initiative. Then, fms should re-evaluate their readily achievable barrier removal options. Finally, they should review their accessible evacuation plans (or create them if they haven’t done so already). Each of these initiatives are examined fully in this article.

Using 2004 ADAAG/ABAAG

There are so many federal accessible design and constructions standards—not to mention the state and local ones—that it can rightfully make any fm’s head spin. Depending on the type of facility, fms may have to comply with one or more of the following guidelines for their construction projects:

The “new” ADA/ABA Accessibility Guidelines were promulgated in 2004, but they do not become enforceable design standards until they are adopted by various federal agencies. As of this writing, only the U.S. Postal Service; the General Services Administration; the U.S. Department of Transportation; and the U.S. Department of Defense are following the ADA/ABA 2004. Fms at all other federal facilities should be proactive and study the ADA/ABA 2004 standards, but they should adhere to the Uniform Federal Accessibility Standards of 1988 when coordinating construction projects.

Managers of all other facilities should learn about the 2004 ADA Guidelines but should still actively apply the older standards. (See Chart 1.) Privately owned facilities must continue to meet the 1991 ADAAG (not 2004). If a project receives federal funding, it must also meet the UFAS in addition to the 1991 ADAAG.

This regulatory morass should be mitigated once the U.S. Department of Justice adopts the ADA/ABA 2004 as the enforceable standard for ADA and ABA compliance. This adoption was underway, but it has been stalled with President Obama’s cautionary moratorium on any new federal regulations initiated under the previous administration. The 2004 regulations are generally expected to be adopted without change as soon as the new administration’s review is complete.

As fms become familiar with the new guidelines, they will make a pleasant discovery. Since the 2004 ABA/ADAAG have been harmonized with the International Building Code’s scoping provisions for accessibility and the American National Standards Institute’s technical standards, it will be much easier for fms to implement updated ADA standards.

Accessible Design And Construction Protocols

ADA enforcement often cites failure to construct new and altered facilities to meet the ADA Accessibility Standards. Most fms assume architects and contractors will ensure full ADA compliance. This is not the case.

It is important for project managers to take several steps to ensure that designers and contractors fulfill their ADA obligations. These can include requiring architects and engineers to provide:

Specific references to compliance with appropriate ADA, ABA, and FHA accessible standards in RFPs and construction documents. Vague references to compliance (with general phrases such as “all applicable standards”) may not be adequate;

“Accessible Path of Travel” drawings in program analysis, 60% submissions, and CDs;

A page of accessible design details for typical accessible elements in any project;

A list of common errors (making it clear they will not be tolerated in design or construction).

Finally, contractors should be required to use a “Smart Level” (an electronic tool that reads in degrees, percent slope, and pitch), so there will be clear tolerances for slope and cross slope—standard construction tolerances will not apply.

Maintain Accessible Elements

The ADA requires that accessible elements in facilities be maintained. This can include a wide variety of maintenance protocols:

Maintaining lifts and monitoring elevators regularly;

Testing audible and visual alarms;

Removing snow from accessible routes;

Clearing storage areas (including around trash bins, bicycle racks, under elevator buttons, around accessible toilet stalls, near spaces around doors, and at telephones and drinking fountains).

Frequently, fms can make use of custodial and security personnel to report issues and relocate obstacles. These staff members can cycle lifts and test automatic door openers on a weekly basis to ensure good working order. Personnel can also be asked to relocate trash bins that have migrated into clear spaces meant for scooters and wheelchairs.

During regular maintenance or security tours, custodians and guards can check for (and report on) pooling water at accessible parking spaces and along accessible paths. They can test and adjust door pressure and report interior doors that require more than five pounds of force (LBF) to open. Maintaining these elements will make any facility more accessible and reduce both injuries and complaints.

Re-Evaluate Readily Achievable Barrier Removal

Facilities that are open to the public are subject to the ADA’s “readily achievable barrier removal” requirements. This ongoing obligation requires fms and business owners to remove any architectural barriers that can be taken away “without significant difficulty or expense.”

However, what is readily achievable is not clearly defined. In fact, the standard is meant to have a sliding scale. For example, a chain of retail stores (such as Barnes & Noble) will more than likely have a higher standard of what is readily achievable than a single, independent book store.

Typical readily achievable barrier removal would include:

Providing a ramp to mitigate one to three steps;

Making an accessible restroom stall from two standard stalls; and

Adding lever hardware to doors and sinks.

(Providing an elevator or adding a new audible/visual alarm system is rarely—if ever—considered to be readily achievable.)

Many fms have completed ADA readily achievable barrier removal programs. Those who have not should review this program and adapt it to the current economic climate.

Additional ADA Updates

Here are two recent ADA updates from the Building Owners and Managers Association (BOMA) International.

President Bush Signs ADA Amendments Act of 2008
Last year, the ADA Amendments Act of 2008 was passed by Congress and signed into law by President Bush on September 25. The Act broadens the definition of “disability” and became effective on January 1, 2009.

The stated purpose of the legislation is to provide a clear and comprehensive mandate for the elimination of discrimination in the disability area. It was a bipartisan effort in both the House and Senate to roll back several Supreme Court decisions making it difficult for many employees to qualify for disability protection.

The new law does not require employers to make changes in hiring procedures, nor does it change the accommodations required by the ADA pursuant to the ADA Accessibility Guidelines. It does, however, expand the number of people potentially covered by the ADA by expanding the meaning of “major life activity” in the current ADA definition of disability as “one involving a physical or mental impairment that substantially limits one or more major life activities.”

The Act states that, in addition to activities previously defined in the ADA, “major life activity” includes the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Afflictions such as epilepsy and diabetes would now specifically be covered by this Act.

Proposed DOJ Guidelines Altering Enforcement of ADA Are Withdrawn
On January 22, 2009, the Obama Administration withdrew draft guidelines, proposed by the Department of Justice, that would, no doubt, alter the enforcement standards for the ADA if implemented. These enforcement standards apply to the construction and alteration of all facilities covered by the ADA (except transportation facilities, which are subject to standards previously updated by the Department of Transportation).

Although it was highly anticipated that the new version of the enforcement standards would be published before the end of 2008, the election and the impending change in Administrations altered that plan. Many observers of the process to revise these ADA enforcement standards expected that the Obama Administration would suspend the impending implementation of the revisions until a review of them could be made. Now, that is, in fact, the case.

Although the obligation remains, the timeframe for achieving it might be extended. In any case, having an updated plan for this barrier removal and documentation of past and proposed progress is good practice (especially if enforcement agencies investigate or complaints are raised).

Accessible Evacuation Plans

The federal courts have interpreted the ADA’s access requirements to include effective evacuation plans for people with disabilities. If a facility has an evacuation plan for its occupants, fms should review it for specific protocols that will ensure equal access to safe egress by people who cannot vacate the premises independently.

Fms should not assume their existing plans are adequate, especially for those without visible disabilities. The most common conditions are related to stamina and knee and back problems. It is important to avoid a scenario where a person with a disability becomes a barrier in a stairwell, preventing others from safely evacuating.

Accessible evacuation plans should include the following elements:

Identification of rescue assistance/safe wait areas;

Coordination with human resources to plan for those who have confidentially identified themselves as needing assistance in an evacuation;

Identification and training of volunteers who can assist people with disabilities;

Availability of back up mobility aids;

Coordination with local first responders;

Consideration of equipment such as evacuation chairs; and

Practice of these protocols during normal evacuation drills.

The ADA is not going away, and even in times of economic hardship, compliance with the federal civil rights law remains important.

The 2004 ADA/ABAAG and a useful summary of the changes are available at the federal Access Board’s Web site or from the Access Board’s automated publications order line (202) 272-0080 or (202) 272-0082 (TTY). Request publication S-50. For an overview of curb ramp requirements, see the FacilityBlog WEB EXCLUSIVE, “Are Your Curb Ramps Really ADA Compliant?,” by Bob D. Sexton of H.R. Gray.

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